by Betsy Sterling

After five years of litigation and two weeks of trial, the New York State Department of Correctional Services and Office of Mental Health have agreed to a settlement that establishes major improvements in psychiatric treatment for New York State prisoners with mental illness.
The lawsuit, Disability Advocates, Inc. v. New York State Office of Mental Health and Department of Correctional Services, USDC, SDNY, Case No. 02 Civ. 4002 was filed in federal court in New York City in May, 2002. The settlement agreement was approved by Judge Lynch on April 27, 2007 and is effective immediately.

The suit alleged that prisoners with mentally illness throughout New York did not get adequate treatment. In addition, the lack of treatment resulted in many prisoners being punished with lengthy stays in SHU or keep-lock, where they suffered severe psychiatric deterioration, including acts of selfmutilation and even suicide.

At a court conference held on April 27, 2007, Judge Lynch stated ?[h]owever justified the conditions in SHUs might be as a matter of discipline and security, they almost were guaranteed to worsen the mental condition of just about anyone but certainly those with vulnerable psyches. ? greater attention should probably be paid to the problem of extremely lengthy SHU confinement even to those who are not mentally ill.?

This settlement is historic in its scope. Unlike similar cases in other states, relief for prisoners with mental illness in SHU and in other isolated confinement settings is not limited to an individual so-called ?supermax? prison. The settlement applies to all prisoners with serious mental illness in any form of isolated confinement in any state prison in New York. The settlement also improves mental health treatment available to prisoners when they first arrive in state custody with a goal of preventing their involvement with the disciplinary system altogether.

The settlement will benefit all prisoners with mental illness. There are approximately 8,000 prisoners in DOCS? custody on the active mental health caseload, or 12-13% of the total prisoner population. According to OMH, approximately 21% of those prisoners suffer from schizophrenia and other psychotic disorders and 23% have mood disorders.
Under the settlement, DOCS and OMH agreed:

? to provide universal and improved mental health screening for all prisoners when they are first admitted to prison;

? to provide prisoners with serious mental illness confined in SHU a minimum of 2 hours per day of out of cell treatment and/or programming, in addition to an hour of recreation, and for prisoners who will be housed in the Residential Mental Health Unit, as many as 4 hours per day out of cell treatment and/or programming, in addition to an hour of recreation.

? to review the disciplinary sentences of all prisoners with serious mental illness for the purpose of removing these prisoners from SHU and keeplock;

? to provide residential mental health programs for an additional 405 prisoners with serious mental illness;

? to provide 215 Transitional Intermediate Care Program beds for prisoners with mental illness in general population;

? to add 90 additional Intermediate Care Program beds for prisoners with mental illness who cannot tolerate general population units;

? to create a 100 bed Residential Mental Health Unit (?RMHU?) which will provide 4 hours per day of outofcell programming and/or treatment for prisoners with serious mental illness who would otherwise be in SHU;
? to provide an additional 20 psychiatric hospital beds for prisoners in need of acute care;

? to provide mental health and suicide prevention assessments upon admission to SHU;

? to limit the use of observation cells, where prisoners in psychiatric crisis are deprived of most possessions and clothing and to improve treatment and conditions for prisoners in such cells;

? to limit the punishment of prisoners with mental illness who hurt themselves because of their illness;

? to limit the use of ?restricted diet? (a bread type loaf served with raw cabbage) as a punishment for misconduct by prisoners with mental illness;

? to eliminate isolated confinement of prisoners with serious mental illness in cells that have solid steel doors that severely isolate and restrict communication; and

? to increase mental health services to prisoners in keeplock confinement.

In addition, during the litigation, the state started allocating funds to build additional treatment beds and programs. These funds were allocated for 100 Intermediate Care Program (ICP) beds, creation of an Intensive ICP unit at Wende with 38 beds, an added 90 slots in the Special Treatment Program, and creation of the Behavioral Health Unit at Great Meadow and Sullivan with 102 beds. Also, OMH satellite units are being constructed and put into operation at three medium security facilities - Albion, Midstate and Fishkill prisons.

The settlement?s provisions for the review of disciplinary sentences of prisoners with serious mental illness include the following:

? A One Time Review of All Previously Imposed SHU Time: In order to address the historical accumulation of large SHU sentences, and meet the goal of reducing the time prisoners with mental illness are housed in restrictive environments, the settlement requires that all prisoners with serious mental illness have their SHU sentences reviewed by central office staff (OMH and DOCS personnel appointed by the Commissioners) for diversion from SHU and for SHU time cuts. This review must be completed within one year.

? Automatic Review of New SHU sentences: All disciplinary
determinations in which mental health was at issue in the disciplinary hearing will, from this point forward, be automatically reviewed by the Superintendent and OMH if a prisoner receives a SHU sanction of greater than 60 days or an accumulation of 120 days or longer of SHU or keeplock confinement.

? Time Cuts: At least once every three months prisoners on the OMH caseload will have their SHU time reviewed for possible time cuts by a Case Management Committee (CMC) composed of DOCS and OMH staff.

? Case Management Committee (CMC) Expansion: These committees currently exist in OMH level 1 facilities for the purpose of monitoring and making recommendations for time cuts, privileges and mental health treatment for prisoners in SHU. Under the settlement agreement, all OMH level 2 facilities will now have CMCs. Prisoners in keep-lock housing units that are on the OMH caseload and are serving more than 60 days of confinement time will also be subject to CMC review.

? Central Office Review Committee: Central office staff at DOCS and OMH designated by the Commissioners will be on this committee, which will provide oversight to the settlement agreement and review the aggregation of SHU confinement sanctions for prisoners on the OMH caseload on a prison by prison basis.

? Reviews of SHU confinement: Prisoners with serious mental illness that are in SHU will have their housing reviewed at least every 90 days to determine if confinement in SHU is consistent with both mental health treatment and safety and security requirements. The settlement agreement commits DOCS and OMH to moving these prisoners from more restrictive to less restrictive environments and significantly reducing the time that prisoners with serious mental illness are housed in restrictive environments when safety and security permit.

DOCS and OMH have also agreed to the following reforms regarding the disciplinary process:

? A presumption against bringing disciplinary charges for incidents of self-harm, threats of self harm and related charges, such as destruction of state property: The settlement calls for a presumption against pursuing these charges and only in rare circumstances can a prisoner receive SHU or keeplock time for self harming behavior or verbally reporting intent to self harm.

? Informational Reports: For prisoners housed in various mental health residential programs, in place of some Misbehavior Reports, DOCS will use informational reports that will not result in a penalty of SHU or keeplock time. This system is currently in place in the Behavioral Health Units at Great Meadow and Sullivan prisons.

? Refusals of Treatment or Medication: Misbehavior Reports will not be issued solely for a prisoner?s refusal to accept medication or treatment.

? Limits on Restricted Diet: There will be limits on use of the restricted diet for prisoners where mental health is at issue in a disciplinary hearing. For these prisoners, the restricted diet may only be used as a sanction for safety and security reasons. The restricted diet will not be imposed solely as punishment for this group of prisoners who are disruptive and who have lost all other available privileges and good time.

? SHU Mental Health Assessment and Suicide Prevention Screening: These will take place within one day of admission into SHU.

As noted, the settlement also reforms DOCS? and OMH?s use of observation cells. The settlement establishes a presumption that prisoners will be held no longer than 4 days in an observation cell. If a prisoner is held more than seven days, OMH needs to consult with the Central New York Psychiatric Center (CNYPC) clinical director or designee. There will be constant 24-hour supervision of prisoners on suicide watch in observation cells. Amenities for prisoners in observation will be improved and there will be daily clinical contact for prisoners in observation cells including out-of-cell therapy sessions five days per week.

The new state budget provides substantial amounts of new spending to carry out the State?s commitments in the settlement agreement. These funds approximate over $50 million for construction costs; $2 million for additional OMH staffing for the 20072008 year (to grow to $9 million when construction is complete); and nearly $2 million for additional DOCS staffing for the 20072008 fiscal year.

The settlement agreement provides plaintiff with a three to four year monitoring period to assure the defendants? compliance with the terms of settlement. During the monitoring period, plaintiff may utilize psychiatric and security experts, will conduct tours of New York State prisons and will have access to documents regarding compliance issues.

At the April 29, 2007 court conference Judge Lynch stated ?...I?m very gratified to approve this settlement. I think it represents a very forward-looking approach on the part of the state, and I hope it results in significant improvements in the treatment of mentally ill prisoners...it was a very well thought out and valuable settlement.?

According to Betsy Sterling, of Prisoners? Legal Services, ?The settlement provisions require the commitment of high level officials in both of the state agencies to involvement and to oversight of changes and reforms in the prison mental health system. We expect this commitment of the leadership to drive the entire system forward with long overdue and necessary change.?

Nina Loewenstein, of Disability Advocates, Inc. stated, ?This settlement will greatly enhance the care and treatment of every prisoner with serious mental illness in New York prisons and, once the treatment beds promised in the settlement are completed, significant numbers of prisoners with serious mental illness will be diverted from SHU into programs providing treatment and programming up to four hours a day.?

Sarah Kerr, of the Legal Aid Society, Prisoners? Rights Project stated, ?This settlement is historic in the scope of its comprehensive mental health programs and in the breadth of the relief provided to inmates with mental illness. This settlement provides relief to all prisoners with serious mental illness in any form of isolated confinement in any prison and much more.?

Cliff Zucker, Executive Director of the plaintiff, Disability Advocates, said ?This landmark settlement will insure that prisoners with serious mental illness receive needed treatment and are not confined under inhumane conditions. Moreover, mental health staff, correctional officers, prisoners and the public will benefit from the increased safety and stability provided by making mental health treatment available to those in need.?

Plaintiff expended massive attorney hours and the attorneys fees were negotiated as a lump sum. Plaintiff was not limited to the PLRA attorney fee rate because the plaintiff was ?Disability Advocates? and, therefore, the lawsuit was not ?a suit brought by prisoners.?
Additionally, claims were brought pursuant to the ADA and Rehabilitation Act which were outside the PLRA fee limits. Legal services counsel litigated the case with the private law firm of Davis Polk & Wardwell who provided extensive pro bono litigation assistance including over 30,000 hours of attorney time and 10,000 hours of paralegal and support time. The firm did not seek recovery of attorneys? fees for any of those hours. Fees in the sum of $2 million were awarded for the work of the three legal services programs of counsel to the plaintiff and total costs of $1.45 million were awarded. This case was litigated on behalf of prisoners with mental illness by Prisoners? Legal Services of New York, Disability Advocates, Inc., the Prisoners? Rights Project of the Legal Aid Society, and with extensive pro bono assistance from the law firm of Davis Polk & Wardwell.

The author is employed by Prisoners? Legal Services of New York and was one of the attorneys who litigated the case.

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